Citation Nr: 0700270
Decision Date: 01/05/07 Archive Date: 01/17/07
DOCKET NO. 05-27 093 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a low
back disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and A.C.
ATTORNEY FOR THE BOARD
Christine C. Kung, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1950 to July
1954.
This matter comes on appeal before the Board of Veterans'
Appeals (Board) from an April 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Baltimore, Maryland (RO) which denied service connection for
degenerative disc disease of the lumbar spine because
evidence submitted was not new and material evidence.
In a May 2004 rating decision, after having received new
evidence, the RO again denied service connection for
degenerative disease of the lumbar spine because evidence
submitted was not new and material. The veteran submitted
additional evidence in July 2004. In a June 2005 statement
of the case (SOC), the RO indicated that it had reopened and
considered the veteran's claim on the merits denying service
connection for degenerative disc disease of the lumbar spine
on the merits.
The veteran testified before the undersigned Veterans Law
Judge at a November 2005 Board hearing; the hearing
transcript has been associated with the claims file.
FINDINGS OF FACT
1. In an unappealed August 2002 rating decision, the RO
denied service connection for a back condition because new
and material evidence had not been submitted.
2. Evidence received since the August 2002 rating decision
relates to an unestablished fact necessary to substantiate a
claim for service connection for a low back disorder.
3. The veteran's currently diagnosed low back disorder is
not shown to be etiologically related to an in-service back
injury.
CONCLUSIONS OF LAW
1. The August 2002 rating decision, which denied service
connection for a back condition, is final. 38 U.S.C.A. §
7105 (West 2002); 38 C.F.R. § 20.1103 (2006).
2. Evidence received subsequent to the August 2002 RO
decision pertaining to a low back disorder is new and
material; the claim for service connection for a low back
disorder is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108
(West 2002); 38 C.F.R. §§ 3.156(a), 20.1105 (2006).
3. A low back disorder was not incurred in or aggravated by
active service, nor may arthritis be presumed to have been so
incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103, 5103A,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The Board finds that VA has met all statutory and regulatory
VCAA notice and duty to assist requirements. See 38 U.S.C.A.
§§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In a February 2004 letter, VA informed the veteran of the
evidence necessary to substantiate his claim, evidence VA
would reasonably seek to obtain, and information and evidence
for which the veteran was responsible. VA also asked the
veteran to provide any evidence that pertains to his claim.
A claimant may reopen a finally adjudicated claim by
submitting new and material evidence. 38 U.S.C.A. § 5108
(West 2002); 38 C.F.R. § 3.156 (2006). With respect to new
and material evidence claims, VA must notify a claimant of
the evidence and information that is necessary to (1) reopen
a claim, and (2) establish entitlement to the underlying
claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1)
(2005); Kent v. Nicholson, 20 Vet. App. 1 (2006). Thus, VCAA
notice must include an explanation of the meaning of both
"new" and "material" evidence, and must describe the
particular type of evidence necessary to substantiate any
service connection elements found to be insufficiently shown
at the time of the prior final denial.
The February 2004 notice letter provided the veteran with an
explanation of the meaning of both "new" and "material"
evidence. The Board notes that VA did not provide notice of
the particular type of evidence needed to substantiate
elements found to be insufficiently shown at the time of the
August 2002 rating decision. However, in June 2005, the RO
reopened and reconsidered the veteran's claim for service
connection on the merits after determining that new and
material evidence had been received. Therefore, the Board
finds no prejudice to the veteran in proceeding with the
issuance of a decision. See Pelegrini v. Principi, 18 Vet.
App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183
(2002); see also Kent v. Nicholson, 20 Vet. App. 1 (2006).
The VCAA notice requirements apply to all five elements of a
service connection claim, including the degree of disability
and the effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). In the present appeal,
VA did not provide the veteran with notice of the type of
specific evidence necessary to establish a disability rating
or effective date prior to the initial rating decision.
However, as the Board concludes below that the preponderance
of the evidence is against the veteran's claim for service
connection, any questions as to the appropriate disability
rating or effective date to be assigned are rendered moot.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
There is no indication that any notice deficiency reasonably
affects the outcome of this case. Thus, the Board finds that
any failure is harmless error. See Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157
(Fed. Cir. Apr. 5, 2006).
The veteran's service medical records, VA treatment records,
and a hearing transcript have been associated with the claims
file. Additionally, a VA medical opinion and an independent
medical expert (IME) opinion have been obtained in order to
determine the nature and etiology of the veteran's low back
disorder. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §
3.159 (2006). VA has provided the veteran with every
opportunity to submit evidence and arguments in support of
his claim, and to respond to VA notices. The veteran and his
representative have not made the Board aware of any
additional evidence that needs to be obtained prior to
appellate review. The record is complete and the case is
ready for review.
B. Background and Evidence
The veteran's September 1950 induction examination did not
reflect any back problems. Service medical records show that in
early May 1953, the veteran fell from one deck to another aboard
a small craft, approximately eight feet, striking his back
against a sink with resultant pain and marked contusion. He was
assessed with marked contusion to the right of his spine at T-10
to L-1. A urinalysis done at the Receiving Station following the
fall revealed albuminuria, and it was felt advisable to
hospitalize the veteran for observation. He was transferred on
that date to Bethesda Naval Hospital for evaluation. The
urologic service performed emergency IVP on the veteran and
repeatedly checked his urine. The pyelegram was normal and the
urine was albumin free. However, in the course of the work-up
borderline hypertension and glycosuria were observed. It was
noted that physical examination of the veteran was entirely
normal except for the hypertension which was the labile type. It
was summarized that the veteran was originally admitted for mild
albuminuria secondary to injury and subsequently investigated for
labile hypertension and glycosuria. The hospital released him at
the end of June 1953 with diagnoses of hypertensive reaction and
abnormal glucose tolerance tests. A Board of Medical Survey
placed him on six months of light duty at that time, with follow-
up glucose evaluation to be conducted thereafter. After that
additional glucose testing and a second Board of Medical Survey
in February 1954, the veteran was deemed fit for full duty. He
was then discharged from service in July 1954, with normal back
clinical findings on examination at that time.
The veteran submitted additional medical records from his May
1953 hospitalization. X-rays taken after the veteran's injury in
May 1953 revealed no evidence of fracture; the spine and bony
pelvis appeared normal.
A November 2000 letter from Dr. L.Z.S. noted that the veteran had
previous back injury that precluded him from walking on a
treadmill for his stress test; no further elaboration was
provided.
VA treatment records from December 2001 reflect a chronic lumbar
spine disability to include diffuse idiopathic skeletal
hypertrophy with superimposed early endplate osteophytes.
In July 2003, the veteran submitted various private treatment
records, which reflect continuing back pain and treatment for
back strain and acute lumbar spasm. (See Correspondence Letters
from Dr. P.A.M., December 1989, January 1990, October 1991,
October to December 1994, June 1997). The veteran was also
assessed with significant spondylosis and diffuse idiopathic
skeletal hyperostosis in the lumbar and thoracic spine, and mild
disc disease with mild stenosis. (Treatment Reports, Dr. C.R.F.,
May 2003, June 2004).
The veteran submitted various lay statements in April 2004. He
described the in-service injury and indicated that he was treated
with medication and heat therapy for back pain shortly after
service. He also submitted various lay statements from friends,
who described continuing complaints of back pain after service.
The veteran also submitted a May 2004 letter from Dr. N.P.T. Dr.
N.P.T. indicated that the veteran had been a long-time patient of
his. He stated that the veteran had suffered a severe fall in
1953, that he had a recent CT scan of the lumbar spine, and that
it was possible that the changes seen were associated with his
previous fall. Similarly, in a June 2004 statement, C.R.F., M.D.
opined that the veteran's current back disorder, characterized as
diffuse idiopathic skeletal hypertosis with spondylosis and mild
disc disease with mild stenosis, was possibly related to the
original back injury in 1953. The veteran reportedly told Dr. F.
that he had been hospitalized for 11 weeks because of back pain
subsequent to the 1953 fall.
A February 2005 VA examination, which included a review of
the claims file, revealed moderate to severe degenerative
osteoarthritic changes in the entire spine, including the
cervical, thoracic, and lumbar spine, supported by x-rays and
CT. The examiner stated that x-rays done in 1953, after the
veteran's fall, ruled out fracture. He opined that it
appeared unlikely that extensive spondylosis of the spine was
caused by the described fall in 1953. The veteran had
extensive changes affecting the entire spine, not limited to
the lumbar area, but also in areas not affected by the trauma
directly. He had no evidence of fracture then, or on recent
imaging. The degenerative changes were predominantly bony at
multiple levels; they were not predominantly a soft tissue or
disk injury. The examiner stated while there is no doubt
that the veteran had moderate to severe spinal degenerative
changes as a source of potential back pain, there was no
medical evidence for a persistent back problem in the years
after military discharge, in particular, the late 1950s or
1960s. There was also a lack of any comments regarding
persistent back pain in the treatment record from 1953 except
on admission.
The examiner opined that the veteran most likely had a low
muscular strain injury in 1953 as the result of the described
fall without bony involvement or radiculopathy at that time.
He may have had subsequent recurrent lumbar strain injuries
corresponding to his history of low back exacerbations, even
prior to developing the current severe degenerative spine
changes. The examiner noted that while he did not see the
fall in 1953 as the cause of the veteran's degenerative bony
spine changes, there may have been a minor contribution of
his fall injury to subsequent lumbar strain injuries and
subsequent development of back pain. He stated that this
contribution, if at all present, was difficult to assess but
was probably not more than 10 percent.
A November 2006 IME opinion was rendered by an orthopedic
specialist based on a review of the entire claims file. The
IME stated that the veteran's in-service back injury was
definitely a soft tissue injury. It appeared to have been
focused at the thorocolumbar junction (T10-L1) as evidenced
by the kidney injury that was also sustained. The IME stated
that it was clear that the veteran did not sustain a spine
fracture or a significant disc injury. He did not suffer
neurologic injury or sequelae as a result of the injury in
the 1950s. His most recent radiographs and lumbar MRI scan
indicated a disease process that was age appropriate for a
gentleman over the age of 70. The findings were all
degenerative in nature and did not represent post-traumatic
findings. Based on the veteran's recorded testimony, the IME
concluded that no significant spinal column or neurologic
injury occurred. The veteran only sustained a soft tissue
injury to the back. The soft tissue injury carried no
residual long-term disability. The IME stated that suffering
a soft tissue injury to the back does not predispose a
patient to either premature or more advanced degenerative
changes in their back. Based on the mechanism of the injury,
the nature of the injury that occurred, and the natural
history of spine problems and the known sequelae of soft
tissue back injuries, the IME found no causal connection
between the veteran's ongoing low back disease and a service-
related injury. He stated that it would appear that the
veteran's ongoing back disease was solely related to advanced
degenerative arthritis consistent with a patient in his age
group.
C. New and Material Evidence
The RO previously considered and denied the veteran's claim
for service connection for a back condition in unappealed
February 2002 and August 2002 rating decisions. The RO
denied the veteran's initial claim for service connection
because there was no showing of in-service onset or
continuity since service. In August 2002 the RO found that
new and material had not been presented to re-open the
previously denied claim because there was no evidence of a
chronic back disorder until many years after service.
The RO reopened and reconsidered the veteran's claim for
service connection for a low back disorder in June 2005. The
Board believes that the RO was ultimately correct in
reopening the veteran's claim; nevertheless, the Board must
address the issue of new and material evidence. See Barnett
v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996).
If new and material evidence is presented or secured with
respect to a finally adjudicated claim, VA shall reopen and
review the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156 (2006). New evidence means existing evidence not
previously submitted to agency decisionmakers. 38 C.F.R. §
3.156(a) (2006). Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. Id. New and material evidence can
be neither cumulative nor redundant of the evidence of record
at the time of the last prior final denial of the claim
sought to be reopened, and must raise a reasonable
possibility of substantiating the claim. Id. The evidence
must be both new and material; if the evidence is new, but
not material, the inquiry ends and the claim cannot be
reopened. Smith v. West, 12 Vet. App. 312 (1999).
Evidence may be new and material where it contributes to a
more complete picture of the circumstances surrounding the
origin of the veteran's injury or disability, even if it does
not warrant revision of a previous decision. Hodge v. West,
155 F.3d 1356 (1998). If the Board determines that the
evidence submitted is new and material, it must reopen the
case and evaluate the appellant's claim in light of all the
evidence. Justus v. Principi, 3 Vet. App. at 512.
Evidence received subsequent to the August 2002 rating decision
includes various lay statements which reflect continuing back
pain after service and private treatment records, which reflect a
current low back disorder. In May 2004, the veteran submitted a
letter from Dr. N.P.T., who stated that the veteran had suffered
a severe fall in 1953, and indicated that it was possible that
the changes seen on a CT scan of the lumbar spine were associated
with his previous fall. Newly submitted private treatment
records, lay statements, and the letter from Dr. N.P.T. are new
in that this evidence was not previously submitted. The Board
finds that the letter from Dr. N.P.T. in combination with lay
statements which reflect continuing back pain shortly after
service are material in that it contributes to a more complete
picture of the circumstances surrounding the origin of the
veteran's injury or disability. See Hodge v. West, 155 F.3d 1356
(1998). The Board finds that the new evidence, when considered
with previous evidence of record, raises a reasonable possibility
of substantiating the veteran's claim.
Accordingly, the Board finds that the veteran has submitted
new and material evidence sufficient to reopen a claim of
entitlement to service connection for a low back disorder.
The Board will perform a de novo review of merits of the
veteran's claim based on all the evidence of record. See 38
C.F.R. § 3.156(c) (2006); see also Barnett v. Brown, 83 F.3d
1380 (Fed. Cir. 1996).
B. Law and Analysis
The Board notes that evidence is presumed to be credible for
determining whether the case should be reopened; once the
case is reopened, the presumption as to the credibility no
longer applies. Justus v. Principi, 3 Vet. App. 510, 513
(1992). The Board must evaluate the veteran's current claim
for service connection in light of all the evidence or
record. See id.
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R.
§ 3.303 (2006). Service connection may be granted for any
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d) (2006).
In addition, certain chronic diseases, including arthritis,
may be presumed to have been incurred or aggravated during
service if they become disabling to a compensable degree
within one year of separation from active duty. 38 U.S.C.A.
§§ 1101, 1112 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307,
3.309 (2006).
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The veteran has a current low back disorder; diagnoses
include chronic lumbar spine disability to include diffuse
idiopathic skeletal hypertrophy, spondylosis, and moderate to
severe degenerative osteoarthritic changes. (See VA treatment
Records, December 2001; Correspondence Letters from Dr.
P.A.M.; Treatment Reports, Dr. C.R.F., May 2003, June 2004;
February 2005 VA examination). Service connection, however,
is not warranted because a low back disorder was not incurred
in service, and arthritis did not manifest within one year of
separation from service.
The February 2005 examiner indicated that the veteran's in-
service fall was not the cause of the veteran's current
degenerative bony spine changes. He based this opinion on
examination and review of the claims file, which revealed
extensive bony changes affecting the entire spine and not
limited areas affected by the trauma; no evidence of
fracture; and no medical evidence of a persistent back
problem in service and for years after service.
The Board notes that the February 2005 VA examiner stated
that there may have been a minor contribution of the
veteran's fall injury to subsequent lumbar strain injuries
and subsequent development of back pain. The examiner stated
that the contribution, if at all present, was probably not
more than 10 percent. VA regulation provides that service
connection may not be based on a resort to speculation or
even remote possibility. See 38 C.F.R. § 3.102 (2006); Obert
v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2
Vet. App. 609, 611 (1992) (medical evidence which merely
indicates that the alleged disorder "may or may not" exist or
"may or may not" be related, is too speculative to establish
the presence of the claimed disorder or any such
relationship). Accordingly, the Board finds that this
opinion was speculative and does not provide evidence of a
nexus or relationship between a current low back disability
and service. The Board also finds that the opinions of Drs.
T. and F. are similarly speculative in that both examiners
indicate only a possibility that the veteran's current back
disabilities are related to the 1953 injury. The Board finds
these opinions to be of little probative weight in this case.
An IME opinion was requested to determine if the veteran's
current low back disorder was related to his in-service
injury. The November 2006 IME opinion was rendered by an
orthopedic specialist. Based on a review of the entire
claims file, the IME found that the veteran's in-service back
injury was definitely a soft tissue injury, and there was no
evidence of a spine fracture or a significant disc injury.
The IME found no causal connection between the veteran's
current low back disorder and his in-service injury, stating
instead that the veteran's ongoing back disease was solely
related to advanced degenerative arthritis consistent with a
patient in his age group.
No nexus has been established by competent medical evidence
between his in-service injury and his current low back
disorder. Thus, the Board finds that service connection is
not warranted.
In making this determination, the Board has considered the
veteran's own statements in support of his claims. However,
where the determinative issue is one of medical causation or
diagnosis, only those with specialized medical knowledge,
training, or experience are competent to provide evidence on
the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994);
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). See
also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)).
C. Conclusion
The veteran has submitted new and material evidence
sufficient to reopen a claim of entitlement to service
connection for a low back disorder.
Although the veteran does have a current low back disorder,
competent medical evidence does not establish that the
disability was incurred or aggravated in service, and
arthritis did not manifest within a year following the
veteran's separation from service. Therefore, the Board
concludes the preponderance of the evidence is against
finding that the veteran has a low back disorder
etiologically related to active service. In making this
determination, the Board has considered the provisions of 38
U.S.C.A. § 5107(b) regarding benefit of the doubt, but there
is not such a state of equipoise of positive and negative
evidence to otherwise grant the veteran's claim.
ORDER
The claim of entitlement to service connection for a low back
disorder is reopened, and to this extent only, the appeal is
granted.
Service connection for a low back disorder is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs